Special circumstances won’t save a plaintiff seeking certiorari review from improper service

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 13, 2011 – A plaintiff who improperly served the respondents’ attorneys in commencing a certiorari action could not rely on a “special circumstances exception” to deflect respondents’ challenge that the court lacked personal jurisdiction over them.

Holly Bergstrom and 18 other Polk County property owners unsuccessfully challenged a mining permit issued by the Polk County Land and Water Resources Department to a subsidiary of Mathy Construction Company (Mathy), then sought certiorari review in the circuit court.

Bergstrom’s complaint named Polk County and Mathy as defendant-respondents.

But Bergstrom personally served Polk County’s corporate counsel instead of the county clerk or the county board chairperson, as required under Wis. Stat. section 801.11(4)(a)1.

Similarly, Bergstrom personally served Mathy’s attorney instead of a Mathy officer, director, or managing agent, as required by section 801.11(5)(a).

In lieu of an answer, Polk County filed a motion to dismiss for improper service. Mathy filed an answer requesting dismissal, then filed a motion for judgment on the pleadings, alleging a lack of personal jurisdiction based on improper service.

However, the circuit court accepted Bergstrom’s argument that serving the defendants’ attorneys established personal jurisdiction based on “special circumstances” – namely, that the attorneys demonstrated authority to act as agents for the purpose of service.

The circuit court also concluded that Mathy waived jurisdictional objections by filing an answer before moving for judgment on the pleadings. Both the county and Mathy appealed.

Special circumstances exception 

The District III Wisconsin appeals court reversed the circuit court in Bergstrom v. Polk County, 2009 AP2572 (Jan. 11, 2011), holding that the “special circumstances exception does not apply in a certiorari action commenced by summons and complaint.”

The appeals court explained – in an opinion written by Judge Gregory Peterson – that under Wisconsin case law, a “special circumstances exception” only applies in condemnation proceedings because such actions allow service by certified mail and do not require “compliance with the personal service requirements of Wis. Stat. ch. 801.”

The court suggested but did not hold that other proceedings, such as actions involving review of Labor and Industry Review Commission decisions, may allow application of the special circumstances exception since such actions, like condemnation proceedings, also allow service by certified mail and do not require compliance with ch. 801.

Even if the special circumstances exception applied, the appeals court explained, “the facts of this case do not constitute special circumstances.”

For the special circumstances exception to apply, the appeals court noted that an attorney must demonstrate authority to accept service by an “uncontradicted statement” and, here, neither the county’s attorney nor Mathy’s attorney made such a statement.

The appeals court also noted that the special circumstances exception could apply if the person upon whom service is proper expressly directs the documents to be served elsewhere, a situation that was not present in the facts of this case.

Right to contest personal jurisdiction not waived 

In addition, Mathy did not waive its right to contest personal jurisdiction by filing an answer before moving for judgment on the pleadings, the appeals court ruled.

When a reviewing court reviews the decision of another court or tribunal, sections 807.07(1) and 781.03(1) require a “return” – the filing of the record of the body whose decision is being reviewed – to be made with the reviewing court by the person in possession of the record.

If a respondent “participates in a proceeding,” i.e., moves for a judgment on the pleadings, before the reviewing court without first moving to dismiss, the responding party is deemed to have waived jurisdiction where “return” has been made to the reviewing court.

Bergstrom argued that Mathy “participated in a proceeding” without first moving to dismiss for lack of personal jurisdiction by filing an answer before filing the motion for judgment on the pleadings. But the appeals court ruled that filing an answer does not constitute “participation,” since a defendant can raise lack of personal jurisdiction in its answer without waiving it.

Bergstrom also argued that Mathy delayed “return,” and thus forfeited a right to invoke a lack of return as grounds for defeating waiver.

But the appeals court disagreed, explaining that section 781.03(1) “does not set forth a date by which a defendant must ‘cause the record to be transmitted,’” and in any event, the county was responsible for transmitting the record to the circuit court.